Congress pressures CMS to implement No Surprises Act requirements

Federal regulators were expected to respond to recent pressure from Congress by advancing long delayed transparency rules for payers and providers.

The No Surprises Act (NSA), enacted in 2020, included several requirements that CMS has not yet implemented, including:

• Good faith estimates (GFEs) from providers to commercially insured patients
• An advanced explanation of benefits (AEOB) from payers to all patients before they receive care

The AEOB requirement builds off the GFE requirement, in part, so CMS may implement rules for the GFE before AEOB rules.

Congressional pressure

This summer, Congress ramped up pressure on the Trump administration to implement the long-delayed GFE and AEOB requirements.

“Nearly five years after the NSA’s passage, and spanning multiple administrations, many of these identified challenges remain unresolved,” said a Sept. 5 letter from the House Ways and Means Committee to cabinet secretaries. “Notably, landmark requirements for upfront and advanced price disclosure before scheduled medical procedures, the AEOB, remains entirely unimplemented.”

On July 25, bipartisan members of the Senate Health, Education, Labor and Pensions Committee wrote a letter to the same three departments that would implement the rules to note GFE rules have already been implemented for uninsured and self-pay patients.

“Full implementation of both the good faith estimates and advanced explanation of benefits are critical to providing patients with the entirety of protections enacted under the No Surprises Act,” wrote Sens. Bill Cassidy (R-La.), Maggie Hassan (D-N.H.) and Roger Marshall (R-Kansas). “As such, we encourage the Departments to promulgate rulemaking for these critical provisions.”

Industry work

The increasing pressure from legislators likely means rules for both GFEs and AEOBs will come in 2026, said Shawn Stack, director of perspectives and analysis for HFMA.

“This workflow is truly highly complex,” said Stack. “And I do agree with Sens. Cassidy, Hassan and Marshall that this has been moving along at a slower pace just because of the complexity.”

In recent years, payer and provider advocates have urged CMS not to issue the rules until they can work out various underlying components to allow them to meet the requirements of future rules on GFEs and AEOBs.

To that end, cross-industry groups of providers, payers and technology vendors met regularly for over a year and recently submitted recommendations to CMS to use an existing transactions system to transmit GFEs.

“It uses the tracks that payers and providers currently utilize for billing and processing claims to save time on implementation needs,” said Stack.

That approach aims to ensure GFEs are used to create an AEOB that is accurate, easy to understand and patient-friendly, he said.

Finding an effective approach is critical, Stack said, because of the intricacies of healthcare services and multiple patient complexities impacting how a service is delivered based on a patient’s individual medical needs.

Even if CMS agrees to the approach urged by the industry, additional “fine tuning” will be needed after the launch of implementing rules.

AEOBs aim to provide patients with a range of information, including their cost share, what the plan will pay for the scheduled service and any prior authorization needed before the visit.

Next steps

Stack expects CMS to start to meet with stakeholder groups in the spring to discuss its planned rules for GFEs and AEOBs.

That could be followed by implementing rules in the summer, possibly as part of the Medicare outpatient prospective payment system rule for 2027.

“That is my timeline and I’m thinking is probably the most aggressive timeline that they could be pursuing, hopefully,” Stack said.

Estimating the cost of implementing those requirements will await release of the final rules, he said.

The American Hospital Association previously wrote CMS that, depending on the approach taken by the coming rules, the “administrative burden would also add substantial costs to the health care system.”

Provider prep

Amid the looming release of rule implementing these latest transparency requirements, there are various ways hospitals and health systems can prepare for them, Stack said.

“I know it’s very difficult to get an all-inclusive good faith estimate prepared by the hospitals, meaning that their good faith estimates to their patients need to include all their hospital technical charges as well as any employed physician charges and any contracted providers,” said Stack.

One challenge is that the statutory requirements underlying GFEs do not penalize contracted providers or employed providers if they don’t provide hospitals with the information to create timely GFEs.

“What hospitals and providers can do now is really work on fine tuning, getting an all-inclusive good faith estimate in place with all clinicians that are providing that very specific scheduled care,” said Stack.

Having working versions of GFEs will prepare those organizations for the launch of AEOB rules.

Additionally, GFEs will require integration of electronic health records, patient accounting systems, clearinghouses and claims data in order to issue electronic GFEs.

Providers using some autonomous coding should talk to business partners helping with that function to check what they can do to help create good faith estimates and AEOB processes.